Since 2012, the UK government has put strict conditions, such as financial requirements, on spouses of British Nationals who wish to move to the UK. However, Surinder Singh(see previous blog posts here and here) has effectively opened up an alternative route for those British Nationals and their spouses who do not meet the strict requirements for a Spouse Visa but are willing to relocate to live in another EEA country, with the option of coming back to the UK in the future.

If you (a British National) lived in another EEA country with your family e.g. spouse, the non-EU family member has the right to apply for a Residence Card upon their return to the UK, meaning they can rely on EU law and in essence avoid the stricter UK national legal requirements.

For a British National family member to qualify for a visa under EU law, the UK EU regulations law requires that they must be:

The British National spouse or Family Member must be a qualified person i.e. is residing in an EEA State (apart from the UK)as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom

The non-EU spouse must have lived with their British spouse in that EEA country

The British National must have moved the “centre of their life” to be in that EEA country (Regulation 9 of the Immigration (EEA) Regulations 2013)

The non-EU spouse cannot use the relocation simply as a way of circumventing UK national law (Immigration (EEA) Regulations 2016)

This case specifically scrutinising the last and most recent requirement listed above i.e. if the Home Office are allowed to consider the applicant’s motivation for moving countries, as detailed in the EEA regulation 2016, in considering the application for the UK Residence Card under UK law.

The Legal Challenge

In this case, the Home Office refused a Surinder Singh application on the basis of the applicant’s motivations for moving to Germany. The applicant was removed from the UK and then decided to relocate to Germany, before returning to the UK and applying for a Residence Card. It was the obvious conclusion for the Home Office that the only reason for the applicant’s decision to relocate was in order to utilise the Surinder Singh route and return to the UK.

The court held that it was wrong to only consider the applicant’s motivations in their decision to move to Germany. However, the court did not particularly agree with the applicants position neither that motivation was irrelevant, instead highlighting that the EU legislation does require an “effective and genuine activity” in that EEA state, in order to prevent abuses of EU law with the intention of overcoming UK law (O and B v. Minister voor Immigrantie, Intergratie en Asiel).

The court held that the Home Office cannot base their decision solely on what motivated the applicant to live in an EEA country, but they can consider the applicant’s motivations for relocation to the EEA country when assessing the “effective and genuine” nature of their stay. Leaving the question, what is meant by “effective and genuine”?

“Effective and Genuine”

The court held that the “genuineness” of a residence is subjective. It should be assessed through looking at a variety of factors in each individual case and such factors could include motivation.

The court ruled that what is most important is that an applicant creates or strengthens family life in that EEA state, as this should be the basis for the Home Office’s assessment. So, learning the language, registering at a school, doing activities and generally embracing local life would be a positive indication of an effective and genuineness residence under EU law.

The court allowed the Home Office to consider other factors such as the duration of an applicant’s stay in the EEA state, as well as anything of an “irregular nature”, meaning things like immigration history and employment history can be considered.

For example:

If the Home Office suspects that the reason for the move to another EEA state is for the purpose of using the Surinder Singh route based on previous UK visa rejections, the Home Office are likely to sucessfully reject a UK residanece applicantion on conclusion that a stay in the EEA state was not “effective and genuine”. However, as a result of this case, the Home Office cannot come to this conclusion based on motivation alone without considering the other factors as well.

What does it all mean?

Effectively the Scottish Court of Session seems to have validated to a certain extent the recent regulations published by the Home Office (see article). These regulations did on the face of it seem to go against EU jurisprudence as laid down in Secretary of State for the Home Department v. Akrich. As now the Home Office can use motive as a way of considering if someone is genuinely and effectively residing in another country. It should be noted that although the UK court has deemed this to be compatible with the EU law, it has not be put before the EU courts yet, whose judgement would overrule the UK courts and give the final say on this matter.

Of course proving motive can itself be problematic for the Home Office, especially where a migrant does not have an adverse immigration history. But, for those with adverse immigration history, the Home Office does have a better chance of succeeding to use this new regulation to refuse an application for a Residence Card where the conduct of the migrant can indicate to a particular motive. At the moment, however, the Home Office seems to be pretty much rejecting, in a wholesale manner, EEA Residence Card applications under Surinder Singh route, and then expecting the applicants to fight it in court.

As a UK immigration solicitor, my advice would be if you are looking to apply for a Residence Card after under Surinder Singh route make sure you use a UK immigration solicitor to guide you in the preparation. For those who application has already been rejected, get yourself a competent UK immigration solicitor to fight your case in court. All the cases that we have so far represented in court under these regulations have been successful. But, what makes the difference is how the facts are presented to the judge on the day, as the judge has to make the judicial decision on if the stay was genuine and effective.

If you have been affected by any UK immigration matter, please contact Solicitor Tito, a UK Immigration and Human Rights Solicitor, for a free initial consultation about your legal options. Call 07544 669131/01163800744 or on Skype: tito.mbariti. Cross Border Legal Ltd is a UK Solicitor law firm regulated by the under the Solicitor Regulations Authority and is Headed by Mr Tito Mbariti, a UK Immigration and Human Rights Solicitor who is a practising lawyer and member of the Law Society Of England and Wales.

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